Citation NR: 9735350
Decision Date: 10/20/97 Archive Date: 10/24/97
DOCKET NO. 94-29 259 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for a left knee
disability, currently evaluated as 20 percent disabling.
ATTORNEY FOR THE BOARD
C. Eckart, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1983 to January
1986.
This case initially came before the Board of Veterans’
Appeals on appeal from a rating decision of February 1993
from the Boston, Massachusetts Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied entitlement
to an increased rating for his left knee disability which was
evaluated as 10 percent disabling. By rating decision of
December 1993, the RO increased the evaluation of the
veteran’s left knee disability to 20 percent. The veteran
has indicated continued disagreement with the RO’s evaluation
of his left knee disorder. He has since moved to Florida,
and the St. Petersburg RO is the controlling RO.
By means of a Remand dated in June 9, 1997, the Board
requested additional RO development of the issue of
entitlement to an increased evaluation for a left knee
disorder. In part, the veteran was to supply information
concerning any treatment he had undergone, records of which
were not associated with the claims folder. In a letter
dated on June 27 1997, the RO requested the veteran to
provide information about any medical treatment for his left
knee not already associated with the claims file. The
veteran failed to respond; and the case was returned to the
Board for further consideration.
REMAND
On the initial appeal to the Board, the Board remanded the
case in June 1997, for further development, including
attempting to obtain additional records, a VA medical
examination, and readjudication of the claim, to include
consideration of the factors in 38 C.F.R. §§ 4.40 and 4.45,
in addition to reliance on Diagnostic Code (DC) 5257, 5258
and 5259. It is apparent to the Board that all the requested
developments have not been accomplished. It is noted that
the appellant was contacted by the RO in a June 1997 letter
requesting he provide information about providers of medical
treatment for his left knee. The veteran has failed to
respond to this letter, which was sent to his last known
address, with no indication that it was returned as
undeliverable. The RO then returned this case to the Board,
without scheduling a VA orthopedic examination to ascertain
the current nature and extent of his left knee disability.
This may have been inadvertent error, or may have been based
on a reading of the Board’s remand language. The Board did
not intend to make the examination contingent on records
received. Indeed, it is possible that there was no response
from the veteran because there had been no pertinent
treatment. As such, the examination should then have been
scheduled. The Board’s intent was that all pertinent records
be before the examiner, including any that may have concerned
recent treatment, not that no examination was needed if the
veteran did not indicate recent treatment. As noted in the
June 1997 remand, medical evidence was inadequate for
entering an informed decision on the merits.
In view of the United States Court of Veterans Appeals
holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), and the
recent Precedent Opinion of the General Counsel of the VA,
No. 23-97, the examination still needs to be conducted
(providing of course that the veteran cooperates). The
veteran is free, of course, to submit any additional
pertinent evidence that he has while the case is in remand
status.
In view of the foregoing, this case is REMANDED for the
following actions:
1. If the veteran wishes to submit
additional information, he should do so
at this time. Regardless of whether
additional information is submitted, the
veteran should be scheduled for a VA
examination to ascertain the current
nature and extent of his left knee
injury residuals. The examiner should
be familiar with orthopedic medicine.
All indicated tests should be
accomplished and all clinical findings
and subjective complaints should be
reported in detail. The claims folder
should be provided to the examiner prior
to the examination. In conducting the
examination, the examiner should
specifically describe any objective
findings of pain, weakened movement,
excess fatigability or incoordination of
the left knee referable to the veteran’s
left knee injury disorder. The examiner
should indicate all pertinent ranges of
active motion in degrees. The examiner
should also describe functional loss
that is due to pain from the service
connected disorder, to include, but not
limited to, restriction in range of
motion due to pain.
2. If the veteran fails to report for
the examination, the RO should confirm
that the veteran had actual or
constructive notice of all
correspondences submitted to him in
conjunction with this claim, to include
notification of scheduling of the
aforementioned examination.
Specifically, all copies of pertinent
letters sent to the veteran should be
associated with the claims folder. In
the alternative, if the veteran does not
report for the examination, and copies
of the scheduling letter are not
available, scheduling personnel should
certify the address to which the letter
was sent, and certify that it was not
returned as undeliverable.
3. When the aforementioned examination
has been completed, the case should be
reviewed by the RO. This review should
include considerations of the provisions
of 38 C.F.R. §§ 4.40 and 4.45 as well
as all information added to the file
since the last supplemental statement of
the case. In the event that the
benefits sought are not granted, the
veteran should be provided with a
supplemental statement of the case and
afforded a reasonable opportunity to
respond thereto. Thereafter, the case
should be returned to the Board for
further appellate consideration. No
action is required of the veteran until
he is notified.
The Board intimates no opinion, either legal or factual, as
to the ultimate disposition warranted in this case, pending
completion of the requested case development.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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